Hancock v. Leong, M.D. et al
Filing
37
FINDINGS and RECOMMENDATIONS recommending that this Action be DISMISSED, Without Prejudice, Based on Plaintiff's Failure to Prosecute re 7 Amended Prisoner Civil Rights Complaint signed by Magistrate Judge Stanley A. Boone on 6/2/2015. Referred to Judge O'Neill. Objections to F&R due within fourteen (14) days. (Jessen, A)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
EASTERN DISTRICT OF CALIFORNIA
10
11
JAMES HANCOCK,
12
Plaintiff,
13
v.
14
A. LEONG, et al.,
15
Defendants.
16
17
18
19
)
)
)
)
)
)
)
)
)
)
Case No.: 1:13-cv-00325-LJO-SAB (PC)
FINDINGS AND RECOMMENDATION
RECOMMENDING DISMISSAL OF ACTION
FOR FAILURE TO PROSECUTE
[ECF No. 35]
Plaintiff James Hancock is appearing pro se and in forma pauperis in this civil rights action
pursuant to 42 U.S.C. § 1983.
On April 24, 2015, the Court issued an order to show cause within thirty days as to why the
20
action should not be dismissed for failure to update his address of record and failure to prosecute this
21
action. (ECF No. 35.) The thirty day time period has expired and Plaintiff has failed to respond to the
22
Court’s order.
23
“In determining whether to dismiss an action for lack of prosecution, the district court is
24
required to consider several factors: (1) the public’s interest in expeditious resolution of litigation; (2)
25
the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy
26
favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions.” Carey
27
v. King, 856 F.2d 1439, 1440 (9th Cir. 1988) (internal quotation marks and citation omitted); accord
28
Omstead v. Dell, Inc., 594 F.3d 1081, 1084 (9th Cir. 2010); In re Phenylpropanolamine (PPA)
1
1
Products Liability Litigation, 460 F.3d 1217, 1226 (9th Cir. 2006). These factors guide a court in
2
deciding what to do, and are not conditions that must be met in order for a court to take action. In re
3
PPA, 460 F.3d at 1226 (citation omitted).
4
This case has been pending since 2013, and the expeditious resolution of litigation and the
5
Court’s need to manage its docket weigh in favor of dismissal. Id. at 1227. Further, the opposing
6
party is necessarily prejudiced when he is unaware of the plaintiff’s location during the discovery
7
phase of the litigation. Id.
8
With respect to the fourth factor, “public policy favoring disposition of cases on their merits
9
strongly counsels against dismissal,” but “this factor lends little support to a party whose responsibility
10
it is to move a case toward disposition on the merits but whose conduct impedes progress in that
11
direction.” Id. at 1228.
12
Finally, given the Court’s and Defendant’s inability to communicate with Plaintiff, there are no
13
other reasonable alternatives available to address Plaintiff’s failure to prosecute. In re PPA, 460 F.3d
14
at 1228-29; Carey, 856 F.2d at 1441.
Accordingly, the Court HEREBY RECOMMENDS DISMISSAL of this action, without
15
16
prejudice, based on Plaintiff’s failure to prosecute. Fed. R. Civ. P. 41(b); Local Rule 183(b).
This Findings and Recommendation will be submitted to the United States District Judge
17
18
assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen (14)
19
days after being served with these Findings and Recommendation, the parties may file written
20
objections with the Court. The document should be captioned “Objections to Magistrate Judge’s
21
Findings and Recommendation.” The parties are advised that failure to file objections within the
22
specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-
23
39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
24
25
IT IS SO ORDERED.
26
Dated:
27
June 2, 2015
UNITED STATES MAGISTRATE JUDGE
28
2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?